Summary
In Shippen, the Court, noting "the record fails to show that appellants [protestants] were in any manner injured by the transfer," indicated "[i]n a proceeding to change the point of diversion of water the question of abandonment of priority is not generally before the court, if a proper objection be made thereto... [a]nd is a matter to be settled in some other appropriate proceeding."
Summary of this case from Jenkins v. State, Dept. of Water ResourcesOpinion
No. 4985.
November 1, 1928.
APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. Geo. W. Edgington, Judge.
Appeal from judgment affirming order of commissioner of reclamation authorizing change of point of diversion and place of use of water. Affirmed.
Bothwell Chapman, for Appellants.
"A change of the place of use of the waters will not be permitted where to do so will damage another appropriator." ( Hall v. Blackman, 22 Idaho 539, 556, 126 P. 1045, 1047.)
"The procedure for change of point of diversion must be followed before the change (though made before the act) will receive legal recognition, and is not unconstitutional on that account. Under it, priority of right may at the same time be ascertained, and water rights settled in the same proceedings." (1 Wiel, 3d ed., p. 545, sec. 506, citing Hallet v. Carpenter, 37 Colo. 30, 86 P. 317.)
"In New Cache La Poudre Irr. Co. v. Water Supply S. Co., 29 Colo. 469, 68 P. 781, we said that it was not proper, in a proceeding, to change the point of diversion, to go into the question of an enlarged use which the petitioner might make of the water after the point of diversion was changed; but this was immediately qualified by the statement that, if the evidence showed that the changed conditions necessarily, or by reasonable inference, would result in an enlarged use, the petition should not be granted. In the light of the offer made by respondents the court should have permitted pertinent evidence, if any, to show that the proposed change would necessarily cause the injury which they alleged would be inflicted."
O.A. Johannesen and C.A. Bandel, for Respondents.
The appropriator of water acquires such a property right to the use of the water that he may transfer it to other lands for use thereon, or he may sell the right separate and apart from the land to others to be transferred for use upon other lands. ( Hard v. Boise etc. Co., 9 Idaho 589, 597, 76 P. 331, 65 L.R.A. 407; Boise City v. Stewart, 10 Idaho 38, 77 P. 25, 321; Hall v. Blackman, 8 Idaho 272, 68 P. 19; Bennett v. Twin Falls North Side etc. Co., 27 Idaho 643, 150 P. 336; Sanderson v. Salmon River etc. Co., 34 Idaho 145, 199 P. 999; Glavin v. Salmon River etc. Co., 39 Idaho 3, 226 P. 739; Koon v. Empey, 40 Idaho 6, 231 P. 1097; Drake v. Earhart, 2 Idaho 750, 23 P. 541; Hailey v. Riley, 14 Idaho 481, 95 P. 686, 17 L.R.A., N.S., 86; C. S., secs. 5563, 5582; McPhail v. Forney, 4 Wyo. 556, 35 P. 773; Kinney on Irrigation, p. 1535.)
"Upon the question of the extent of the injury to the vested rights of others, which must exist before any change is prevented, we will say in general here that it must be of such a nature that it is a real substantial injury and seriously affecting the rights of others. A mere fanciful or trifling injury will not prevent the change." (Kinney on Irrigation, p. 1538; Hard v. Boise City Irr. Co., supra.)
"A change of place of use of a decreed water right to lands other than those upon which such water right was formerly used does not constitute abandonment." ( Joyce v. Murphy Land etc. Co., 35 Idaho 549, 208 P. 241; Bennett v. Nourse, 22 Idaho 249, 125 P. 1038; Joyce v. Rubin, 23 Idaho 296, 130 P. 793.)
The question whether or not the defendants have abandoned or through nonuse lost their water rights is collateral to the issue in this case, and cannot be made an issue here. It can only be settled in some other appropriate action, where the question is directly approached. ( Wadsworth Ditch Co. v. Brown, 39 Colo. 57, 88 P. 1060; Lower Latham Ditch Co. v. Bijou Irr. Co., 41 Colo. 212, 93 P. 483; New Cache La Poudre Co. v. Water etc. Co., 74 Colo. 1, 218 P. 739; Wiel on Water Rights, pp. 1135, 1136.)
This proceeding was initiated before the commissioner of reclamation upon application of respondents as stockholders of the Long Island Irrigation Company for permission to change the point of diversion and place of use of 2,000 inches of the waters of Snake River previously decreed to the Long Island Irrigation Company. It appears from the application that respondents desire to have the 2,000 inches of water changed from the point of diversion maintained by the Long Island Irrigation Company to the point of diversion maintained by the Farmer's Friend Irrigation Company, and the place of use transferred from respondents' lands to lands under the system of the latter company. An order authorizing the transfer was issued by the commissioner of reclamation and an appeal taken to the district court, where, after hearing, the right of respondents to transfer the water was confirmed. This appeal is from the judgment of the district court.
The 2,000 inches of water in question were a part of the appropriation and decreed right of the Long Island Irrigation Company and were diverted and used by respondents on their lands each and every season up until the time of their sale and transfer to the Farmer's Friend Irrigation Company, and have been used by the latter's stockholders since the sale.
The commissioner of reclamation was authorized, under the provisions of C. S., sec. 5582, to grant the application for change of point of diversion and place of use, provided no one was injured by the transfer. The right of respondents to change the point of diversion was the sole question for determination before the trial court, and is the only question here for review. In a proceeding to change the point of diversion of water the question of abandonment of priority is not generally before the court, if a proper objection be made thereto. ( New Cache La Poudre Irr. Co. v. Water Supply S. Co., 74 Colo. 1, 218 P. 739.) Whether there has been an abandonment of the priority of any portion of the decreed right is a matter to be settled in some other appropriate proceeding. ( Lower Latham Ditch Co. v. Bijou Irr. Co., 41 Colo. 212, 93 Pac. 483.)
A water right is real property and may be sold and transferred separately from the land upon which it has been used, the same as any other real property. (C. S., sec. 5325; Crockett v. Jones, 42 Idaho 652, 249 P. 483; Hard v. Boise City Irr. Co., 9 Idaho 589, 76 P. 331, 65 L.R.A. 407.) The right to change is a pre-existing right, and always can be enforced so long as the rights of others are not thereby injuriously affected, and belongs to the stockholder (consumer) in a mutual ditch company as fully as to any other appropriator. ( Wadsworth Ditch Co. v. Brown, 39 Colo. 57, 88 Pac. 1060.)
The fact that respondents sold a portion of their water right, represented by their certificates of stock in the Long Island Irrigation Company, to the Farmer's Friend Irrigation Company, the water to be diverted from the irrigation system of the latter company, would not work an abandonment of the water right. The transfer being duly authorized by the Long Island Irrigation Company, appellants could have no ground for complaint unless they were injured thereby or had acquired some right in and to the water transferred. That appellants acquired no right or interest in the water is shown by its application to a beneficial use by respondents, under their decree, prior to the sale, and the record fails to show that appellants were in any manner injured by the transfer.
Appellants objected upon the hearing before the district court to the introduction of any evidence in view of certain allegations contained in the application for change of point of diversion and place of use. While the application is not artfully drafted, no reversible error was committed by the trial court in overruling appellant's objection.
The judgment is affirmed. Costs to respondents.
Wm. E. Lee, C. J., and Givens, J., and Hartson, District Judge, concur.